Key Takeaways

  • The ACLU interprets the Second Amendment as protecting a collective right tied to militias, not an individual right to own guns.
  • The organization maintains that, outside of police and military use, private firearm ownership is not constitutionally protected.
  • While not supporting gun rights under the Second Amendment, the ACLU raises civil liberties concerns with some gun control laws, especially around privacy, due process, and law enforcement abuses.
  • Historical debates within the ACLU show a shift from tentative support for gun control to a stance of neutrality, as the group avoids endorsing specific criminal justice measures that might erode broader civil liberties.
  • The ACLU’s modern position on gun rights centers on protecting related rights (e.g., free speech, due process, equal protection) rather than the right to bear arms itself.

The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia.

The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.

Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms. Interests of privacy and self-expression may be involved in any individual's choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dangerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual's interest in freedom of choice (but see footnote 1)

However, particular federal or state laws on licensing, registration, prohibition or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions. For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties.

The ACLU takes the position that any such legislation must be drafted bearing these problems in mind and seeking to minimize them.

ACLU’s Focus Beyond the Second Amendment

The ACLU’s gun rights approach is unique compared to many advocacy groups. Rather than framing firearm possession as an individual constitutional right, the organization emphasizes how gun regulations intersect with other rights. For instance, laws restricting firearms may be challenged if they infringe on due process protections, disproportionately affect certain groups, or suppress First Amendment rights such as free association and political speech. In this way, the ACLU does not defend gun ownership itself but remains vigilant against government overreach in enforcing gun laws.

(footnote 1 begins here) When the Board adopted the June 1979 policy, it was suggested that it was unclear as to whether or not the ACLU supported gun control as a civil liberties matter, or simply did not oppose government regulation on this issue. In order to clarify this question, the following sentence was added to paragraph three of the policy as a footnote. "It is the sense of this body, that the word 'justifies' in this policy means we will affirmatively support gun control legislation."

At the April 12-13, 1980 Board meeting, the policy's footnote was reconsidered. Several Board members believed that the statement was inconsistent with the rest of the policy because there was no civil liberties rationale within the policy for affirmative ACLU support of gun control legislation. The Board then moved to refer the policy to the Due Process Committee to refine and discuss further the rationale for affirmative ACLU support of gun control legislation.

At the June 23-24, 1982 Board meeting, the Due Process Committee recommended deletion of the footnote from the gun control policy. The Committee's recommendation was based on the fact that no acceptable civil liberties rationale could be developed for affirmative support of gun control legislation. The link between guns and the breakdown of civil liberties, the Committee suggested, contains too much of the approach to crime control. And crime control, the Committee said, includes measures violative of civil liberties. The possibility that a person who might be defending his or her self at home might be arrested for the use of a handgun is troubling. If we support gun control legislation, we are encouraging the police to search homes, cars, and persons.

The Due Process Committee suggested that the problem with the footnote was that it was indefensible on civil liberties grounds, and that it is not the ACLU's role to commit the ACLU to involve ourselves in social issues by finding a constitutional basis where there is none. Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation.

The Board approved the Committee's recommendation, and deleted the footnote from the existing policy, but left intact the basic policy which expressed the ACLU's views.

Historical Debates Within the ACLU

The ACLU’s history with gun rights has been shaped by internal debates about how far the organization should extend its civil liberties mandate. Early discussions included whether to affirmatively support gun control legislation as a matter of civil liberties, but this approach was later rejected. The Due Process Committee cautioned that equating gun control with civil liberties protection risked conflating crime control with rights advocacy, undermining the ACLU’s credibility. This history underscores why the ACLU continues to adopt a narrow interpretation of the Second Amendment while still challenging laws that violate related constitutional guarantees.

Contemporary Examples of ACLU Gun Rights Work

In modern practice, the ACLU has defended gun owners when government action implicates other protected rights. Examples include:

  • First Amendment cases: The ACLU opposed efforts to silence organizations like the NRA when states threatened to punish businesses for their ties to gun advocacy groups, arguing this violated free speech and association rights.
  • Due Process protections: The organization has raised concerns about laws that restrict gun ownership without fair hearings or clear evidentiary standards.
  • Equal Protection issues: The ACLU has intervened when firearm regulations disproportionately impacted marginalized communities.

These examples reflect the organization’s nuanced approach: it does not view the right to bear arms as constitutionally individual but insists that enforcement of gun laws must respect other core civil liberties.

Frequently Asked Questions

  1. Does the ACLU support the Second Amendment as an individual right?
    No. The ACLU interprets the Second Amendment as a collective right tied to state militias, not an individual right to own firearms.
  2. Why does the ACLU oppose some gun control laws?
    The organization objects to laws that violate due process, privacy, or equal protection rights, even though it does not recognize individual gun ownership as constitutionally protected.
  3. Has the ACLU ever supported gun control?
    Yes, briefly. In 1979 the ACLU added a footnote suggesting support for gun control, but this was later removed when it was found inconsistent with its civil liberties rationale.
  4. What are examples of ACLU involvement in gun rights cases?
    The ACLU has defended groups like the NRA on First Amendment grounds and challenged laws that remove gun rights without proper legal safeguards.
  5. How does the ACLU’s stance differ from other organizations?
    Unlike gun rights groups that focus on the Second Amendment, the ACLU focuses on protecting related civil liberties such as free speech, privacy, and due process when gun regulations are enforced.

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